California Cases July 15, 2021: John E. G. v. Kijakazi

Case Description

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Virginia A. Phillips, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 01-13 of the United States District Court for the Central District of California.

PROCEEDINGS

Plaintiff filed a complaint on August 28, 2020, seeking review of the Commissioner's denial of disability benefits. Plaintiff filed a motion for summary judgment on May 27, 2021. Defendant filed a motion for summary judgment on June 27, 2021 (titled as a memorandum in support of Defendant's answer). Plaintiff filed a “rebuttal” on July 1, 2021. The Court has taken the motions under submission without oral argument. See L.R. 7-15; “Order, ” filed August 31, 2020.

BACKGROUND

Plaintiff filed an application for disability insurance benefits on June 26, 2018, asserting disability since November 22, 2017 (Administrative Record (“A.R.”) 166-69, 186, 256). Plaintiff based his application on alleged lumbar stenosis, hypertrophy and spondylosis of the spine, right thigh lymphodemia, severe right hip and knee pain, difficulty ambulating, right ankle fractures with pitting edema, hypertension, status post-hernia and status post-failed gastric bypass operations ( id. ). In July of 2018, Plaintiff reportedly measured 5'9" and weighed 327 pounds (A.R. 184, 186). Plaintiff asserted that he walked with the aid of a cane and, sometimes, a walker (A.R. 256).

An Administrative Law Judge (“ALJ”) reviewed the record and heard testimony on September 12, 2019 from Plaintiff and from a vocational expert (A.R. 26-32, 37-70). By the time of this hearing, Plaintiff's weight reportedly had increased to 395 pounds (A.R. 47).

In a decision dated November 27, 2019, the ALJ found that Plaintiff has severe obesity, severe disorders of the spine and severe disorders of major joints (A.R. 28). However, the ALJ also found that Plaintiff retains a residual functional capacity for light work, limited to no climbing ladders, ropes, or scaffolds, no crawling, and no “concentrated exposure to hazards.” See A.R. 29-32 (reportedly relying on and deeming “persuasive” the opinions of non-examining state agency physicians as “consistent with the longitudinal record”). The ALJ indicated that Plaintiff's doctor, Dr. Christina Pinto, supposedly had not provided a supportive residual functional capacity assessment. See A.R. 41-42. Dr. Pinto had written a letter dated August 7, 2019, which stated:

[Plaintiff] has been a patient under my care since February 2018. He has multiple medical conditions which cause him to be unemployable at this time and likely permanently. ¶ These conditions include but are not limited to:

[1] Severe back pain due to: Mild to moderate lower lumbar degenerative disc disease, moderate to severe lower lumbar facet spondylosis most pronounced [at] ¶ 4 to L5 where there is a posterior superior disc extrusion resulting in moderate spinal stenosis, and moderate to severe bilateral neural foraminal narrowing.

[2] Radiculopathy/neuropathy due to above

[3] Right knee pain due to severe medially, moderate patellofemoral, and mild lateral compartment osteoarthritis.

[4] Right ankle pain

[5] Morbid obesity

[6] Migraines.

Patient also chronically takes medications that would affect his ability to work due to all of the above. ¶ He follows up regularly and is compliant with all medical recommendations. He is also motivated to improve his health but still will not likely be employable in the foreseeable future. ¶ Please feel free to contact my office should you require any additional information . . . .

A.R. 423 (emphasis added). In the November 27, 2019 decision, the ALJ cited only the first underlined portion of Dr. Pinto's letter, which the ALJ characterized as “[giving] no details on how [Dr. Pinto] arrived at her opinion” (A.R. 31). The ALJ deemed Dr. Pinto's letter “far less persuasive” than the state agency physicians' opinions because Dr. Pinto assertedly did not opine regarding Plaintiff's residual functional capacity, and there allegedly was no evidence Dr. Pinto had any expertise regarding vocational issues. See A.R. 31.

The ALJ found that a person with the residual functional capacity defined above would be capable of performing Plaintiff's past relevant work as a security guard as generally performed (A.R. 32 (adopting vocational expert testimony at A.R. 67-68)). The ALJ therefore found Plaintiff not disabled ( id. ). The Appeals Council considered additional evidence submitted by Plaintiff subsequent to the ALJ's decision, but the Appeals Council nevertheless denied review (A.R. 1-14).

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner , 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue , 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner , 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales , 402 U.S. 389, 401 (1971) (citation and quotations omitted); see also Widmark v. Barnhart , 454 F.3d 1063, 1066 (9th Cir. 2006).

If the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. But the Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence. Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [administrative] conclusion.

Tackett v. Apfel , 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted).

Where, as here, the Appeals Council “considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence.” Brewes v. Commissioner , 682 F.3d at 1163. “[A]s a practical matter, the final decision of the Commissioner includes the Appeals Council's denial of review, and the additional evidence considered by that body is evidence upon which the findings and decision complained of are based.” Id. (citations and quotations omitted).

As discussed more fully below, Plaintiff's new evidence consisted of a May 26, 2020 opinion from treating neurosurgeon Dr. Richard Hwang and a March 4, 2020 opinion from treating psychologist Dr. Charles E. Smith. The Appeals Council apparently believed that the new evidence did not relate to the disability period at issue, which ended on November 27, 2019. See A.R. 2 (mentioning Dr. Hwang's opinion but not mentioning Dr. Smith's statement). In accordance with Brewes v. Commissioner , supra , this Court has considered the new evidence submitted to the Appeals Council in reviewing whether the ALJ's decision is supported by substantial evidence.

DISCUSSION

Plaintiff contends that the Administration materially erred in finding “persuasive” the state agency physicians' opinions, which Plaintiff asserts are inconsistent with the medical record. See Plaintiff's Motion, pp. 4-5, 7. Plaintiff contends that, at the time the state agency physicians reviewed the medical record, much of the record concerned a time when Plaintiff was still working and still trying to perform the functions of his security guard job ( id. at 6). Plaintiff contends that the record then reviewed did not reflect Plaintiff's worsening condition or the psychological problems later assessed by Dr. Smith ( id. ). For the reasons discussed below, the Magistrate Judge recommends that this case be remanded for further administrative proceedings.

I. Summary of the Relevant Medical Evidence

Treatment records by doctors associated with Veterans Affairs (including Dr. Pinto) are dated from February of 2018 through September of 2019 (A.R. 265-527). As detailed below, Plaintiff was treated for, inter alia , lumbar spondylosis, hypertension, dyslipidemia, morbid obesity, and pain of the low back, leg, ankle and foot (A.R. 288-325). Plaintiff received Tramadol, Vicodin, and bilateral L3-L5 medial branch blocks ( id. ). Plaintiff reportedly had undergone two failed gastric bypass surgeries, two hernia surgeries, and a right ankle surgery following a 1983 trauma (A.R. 295).

In February of 2018, Plaintiff reported significant radiating back pain, hip pain, foot pain, ankle pain, and scar pain, all of which assertedly had worsened during the previous six months (A.R. 304-05, 419-22). Plaintiff indicated that his work required a “long walk, ” and he had needed to sit down and to take time off of work (A.R. 305). His weight registered at 382 pounds (A.R. 306). Plaintiff was prescribed Gabapentin, Tramadol, Tylenol No. 3, and Norco (A.R. 307). Imaging was ordered ( id. ).

In April of 2018, Plaintiff reported significant back pain, neck pain, and insomnia, and Plaintiff also said that his legs randomly gave out on him (A.R. 300, 414-16). Plaintiff was prescribed Norco to take at night (A.R. 301). Under the subheading “Assessment/Plan, ” the treatment note states “Discussed considering medical retirement or disability” ( id. ). When Plaintiff returned in May of 2018, he reported that Tramadol was not helping his pain and he wanted to know about filing for temporary disability (A.R. 298).

On examination in June of 2018, Plaintiff reportedly had trigger points in the neck and upper shoulders, pain on range of motion in the thoracic spine, mild to moderate intervertebral tenderness, severe bilateral facet joint tenderness, sacroiliac joint tenderness, positive Patrick's and Gaenslen's tests, but normal gait and normal results on neurological examination (A.R. 296). The diagnosis was lumbar spondylosis, facet disease and lumbar degenerative disc disease with radiculopathy, for which a medial branch block was ordered (A.R. 296). Plaintiff received a bilateral L3-L5 medial branch block in July of 2019 (A.R. 309-11).

Plaintiff returned in August of 2018, concerned that his ankle trauma had caused knee and back issues (A.R. 410-14). X-rays of Plaintiff's right knee in August of 2018 reportedly showed “severe medially, moderate patellofemoral and mild lateral compartment osteoarthritis” “as well as small suprapatellar joint effusion” (A.R. 340, 351, 404). X-rays of his right ankle showed prominent plantar and calcaneal enthesophytes, “prominent os trigonum, ” minimal anterior tibiotalar and talocalcaneal joint space osteophytes, no joint effusion, and no acute fracture or subluxation (A.R. 350, 401-02). Plaintiff agreed to start “rehab” with Dr. Martin (A.R. 410). Plaintiff reportedly was “[f]ollowing with pain management” and would “be possibly having surgery. Pending an MRI now” (A.R. 413).

In September of 2018, Plaintiff reportedly left a voicemail stating that he needed a note in his medical file that he is not able to work and possibly “needs to medically retire per PCP [primary care physician]” (A.R. 336, 368). Dr. Pinto advised that she would discuss the issue at Plaintiff's appointment in November, unless he needed a letter sooner (A.R. 368). Plaintiff had been referred for a L4-L5 epidural steroid injection and had undergone an updated MRI at a non-VA facility, which showed L4-L5 central protrusion with superimposed left superior extrusion touching the left L4 nerve root with moderate central stenosis (A.R. 336-37). Plaintiff reported ongoing urinary incontinence 3 to 4 times a day and one episode of fecal incontinence while walking, possibly related to “worsening lumbar central stenosis at ¶ 4-5” (A.R. 337). Plaintiff was considered for EMG testing and a peripheral neuropathy workup for possible B12 deficiency (A.R. 337).

Meanwhile, state agency physician Dr. G. Dale reviewed the record in July of 2018 and opined that Plaintiff would be capable of light work with limitations to occasional postural activities and avoidance of concentrated exposure to hazards (A.R. 71-82). On reconsideration in October of 2018, state agency physician Dr. J. Mitchell opined that Plaintiff would be further limited to never crouching or climbing ladders, ropes or scaffolds due to Plaintiff's obesity, right knee pain and lumbar pain (A.R. 83-95).

In January of 2019, Plaintiff requested an increase in his pain medication (Gabapentin) (A.R. 523). By February of 2019, Plaintiff reportedly had been referred to neurosurgery for weight loss surgery with a goal to be under 300 pounds before the surgery, and he had been put on a weight loss program (A.R. 513). Plaintiff reported low back pain with numbness in his legs and radiating pain (A.R. 513-14). An EMG reportedly showed “active right L5-S1 radiculopathy” ( id. ). On examination, Plaintiff had decreased sensation at ¶ 2, L3, L4 and L5, normal tone of the affected limbs, tenderness to palpation of the lumbar spine, limited extension of the lumbar spine, positive facet loading, positive straight leg raising and limited hip rotation due to pain, but a normal gait (A.R. 516). His “clinical picture” reportedly was consistent with lumbar radiculopathy, with limited relief from prior interventions (A.R. 518-19). Additional “caudal ESI [epidural steroid injections]” were recommended ( id. ).

In June of 2019, Plaintiff was referred for a sleep study for daytime somnolence, apneic events, snoring and unrefreshed sleep (A.R. 462-64, 478-80, 486-88). In July of 2019, Plaintiff had a surgery consultation after he expressed interest in weight loss surgery options, mentioning that he previously underwent two failed gastric bypass surgeries (A.R. 459-61, 473). He reported back and knee pain, said he was able to walk approximately 10 minutes with a cane, and also said that he was unable to travel in a car (A.R. 460, 465, 473). Plaintiff was considered a good candidate for weight loss surgery (A.R. 473). He also was referred to an orthopedic doctor to establish care and to explore treatment options for arthritis of the knee (A.R. 465-67).

In September of 2019, Plaintiff said he was “having a really hard time” (A.R. 489). Plaintiff's wife then shared with the doctor certain problems that Plaintiff had been too embarrassed to admit ( i.e. , that Plaintiff snores, stops breathing in his sleep, is depressed, gets frustrated easily, has significant and uncontrolled pain, has hearing loss, and suffers from erectile dysfunction) ( id. ). Plaintiff was prescribed Lyrica and Norco, referred to mental health treatment for depression, referred to a sleep clinic, told to follow up with audiology, referred for surgical options for his morbid obesity, given a trial of medication for his migraines, and advised to follow up in two-to-three months (A.R. 490).

The administrative hearing was held on September 12, 2019 (A.R. 37-70). At the hearing, the ALJ asked Plaintiff's counsel if Plaintiff had a residual functional capacity opinion that supported Plaintiff's case, and counsel said, “At this point, we don't . . .” (A.R. 41-42). The ALJ asked how Plaintiff intended to prove his case, and counsel said, “We were hoping that the Court may appoint a [consultative examiner] or [find disability] based on the testimony of the client. . . . We asked the personal doctor for a source statement and she would only send us Exhibit 6F” (A.R. 42 (referencing the letter from Dr. Pinto opining that Plaintiff was “unemployable, ” which the ALJ characterized as not “really say[ing] anything”)). The ALJ claimed that the Veteran Affairs record also “doesn't say much of anything, ” and reminded counsel that the burden of proof is on a claimant through Step 4 of the disability determination process (A.R. 42). Counsel reiterated Plaintiff's hope that the ALJ would order a consultative examination ( id. ). The ALJ replied, “I wish you would have asked before now, but I'll consider that” ( id. ). In fact, Plaintiff's counsel previously had asked for a consultative examination (A.R. 256-259 (counsel's July 9, 2019 letter stating in bold type “ We further request a consultative examination be scheduled ”)). The ALJ did not order any consultative examination. The ALJ issued the adverse decision on November 27, 2019 (A.R. 23-32).

After the ALJ's decision, Plaintiff submitted additional medical opinions from two of his treating physicians, neurosurgeon Dr. Hwang and psychologist Dr. Smith. Dr. Hwang's May 26, 2020 opinion stated that Plaintiff is limited to no lifting more than 10 pounds, no operating heavy machinery and no “prolonged standing” (A.R. 8). Dr. Hwang explained that Plaintiff was under care for lumbar stenosis, which prevents Plaintiff from tolerating prolonged standing or lifting more than 10 pounds, and Plaintiff was being treated with narcotic pain medication, which prevents him from driving or operating heavy machinery ( id. ).

Dr. Smith's March 4, 2020 medical source statement reported that Plaintiff had treated with Dr. Smith since October of 2019, and had been seen for nine sessions (A.R. 9-14). Plaintiff had diagnoses of major depressive disorder (“rule-out” post-traumatic stress disorder), and other problems related to employment (A.R. 10). Dr. Smith indicated Plaintiff's symptoms included poor memory, appetite disturbance with weight change, sleep disturbance, personality change, mood disturbance, emotional lability, anhedonia, psychomotor agitation or retardation, feelings of guilt/worthlessness, difficulty concentrating, suicidal ideation/attempts, time or place disorientation, social withdrawal/isolation, decreased energy, hostility/irritability, and anxiousness (A.R. 10-11). Plaintiff reportedly was taking medications which caused chronic fatigue, inability to operate a vehicle, a need to use the bathroom frequently, memory impairment and poor concentration (A.R. 11). Dr. Smith opined that Plaintiff would have marked to extreme loss in specific areas of work-related mental abilities related to Plaintiff's memory, and would have moderate to extreme loss in specific areas of work-related mental abilities related to Plaintiff's interaction with others. See A.R. 12-13. Dr. Smith further opined that Plaintiff would miss work more than three times each month due to his symptoms, and Plaintiff could not sustain performance for an eight-hour workday (A.R. 11). Dr. Smith opined that Plaintiff would have marked limitation in his activities of daily living, extreme limitation in maintaining social functioning, constant deficiencies in concentration, persistence or pace resulting in the failure to complete tasks in a timely manner, and repeated episodes of decompensation (A.R. 14). Dr. Smith opined that Plaintiff's restrictions had existed since April of 2019 (which was well within the period at issue) ( id. ).

II. Substantial Evidence Does Not Support the ALJ's Residual Functional Capacity Determination; Fuller Development of the Record is Required.

As previously indicated, the ALJ relied on the state agency physicians' opinions. See A.R. 31; 20 C.F.R. §§ 404.1520c, 416.920c. Reports of non-examining medical experts, such as state agency physicians, “may serve as substantial evidence when they are supported by other evidence in the record and are consistent with it.” Andrews v. Shalala , 53 F.3d 1035, 1041 (9th Cir. 1995). One of the issues here is whether the state agency physicians' opinions are consistent with the record evidence such that those opinions can serve as substantial evidence to support the ALJ's residual functional capacity determination. A review of the record before the Court, including the evidence submitted for the first time to the Appeals Council, demonstrates that the state agency physicians' opinions are not consistent with that record. Therefore, these opinions cannot furnish substantial evidence to support the ALJ's decision. See Id.

As discussed above, Dr. Hwang opined in May of 2020 that Plaintiff would be limited to lifting less than 10 pounds and could not engage in any prolonged standing (A.R. 8). The state agency physicians' opinions that Plaintiff would be capable of light work are not consistent with Dr. Hwang's opinion.

At the time of the state agency physicians' opinions, Plaintiff had not yet alleged any specific psychological problems and the record did not reflect any mental health treatment. Such treatment came only after the September, 2019 doctor visit. See A.R. 72, 76, 89-90, 489. Accordingly, the Administration sought no opinions regarding Plaintiff's mental residual functional capacity on initial or reconsideration review. Dr. Smith opined that Plaintiff has had marked and extreme limitations in his functioning related to memory since April of 2019 (A.R. 12-14). A residual functional capacity assessment without consideration of any mental limitations is inconsistent with this aspect of the updated medical record, which concerns at least a portion of the alleged disability period.

The Court is mindful of Plaintiff's burden to establish that he cannot perform his past relevant work. See Sanchez v. Secretary , 812 F.2d 509, 511 (9th Cir. 1987). However, in light of the inconsistencies between the state agency physicians' opinions and the now updated medical record, substantial evidence does not support the administrative decision. See Andrews v. Shalala , 53 F.3d at 1041; Mitsoff v. Commissioner of Social Sec. , 940 F.Supp.2d 693, 702 (S.D. Ohio 2013) (state agency physician's review of the record, which did not include recent reports, did “not take into consideration a significant portion of the record, ” and therefore “the ALJ's decision to adopt such [a residual functional capacity] is unsupported by substantial evidence”); see also Sylvester G. v. Saul , 2021 WL 2435816, at *4 (C.D. Cal. June 15, 2021) (under new regulations, reviewing court looks to whether substantial evidence supports the ALJ's findings and, when medical opinions are at issue, whether ALJ gave a logical, specific and reviewable explanation regarding supportability and consistency that was itself supported by substantial evidence).

Additionally, given Plaintiff's July 9, 2019 and September 12, 2019 requests that the ALJ order consultative examinations, as well as Dr. Pinto's letter offering to provide further information concerning Plaintiff's asserted inability to work, the Administration should have developed the record more fully and fairly to assure that Plaintiff's interests were properly considered. See Brown v. Heckler , 713 F.2d 441, 443 (9th Cir. 1983) (ALJ has a “special duty to fully and fairly develop the record and to assure that the claimant's interests are considered”).

III. Remand is Appropriate.

The Court is unable to deem the errors in the present case to have been harmless. See Molina v. Astrue , 674 F.3d 1104, 1115 (9th Cir. 2012) (an error “is harmless where it is inconsequential to the ultimate non-disability determination”) (citations and quotations omitted); McLeod v. Astrue , 640 F.3d 881, 887 (9th Cir. 2011) (error not harmless where “the reviewing court can determine from the ‘circumstances of the case' that further administrative review is needed to determine whether there was prejudice from the error”).

The circumstances of this case suggest that further administrative proceedings could remedy the ALJ's error. Therefore, remand is appropriate. See McLeod v. Astrue , 640 F.3d at 888; see also INS v. Ventura , 537 U.S. 12, 16 (2002) (upon reversal of an administrative determination, the proper course is remand for additional agency investigation or explanation, except in rare circumstances); Leon v. Berryhill , 880 F.3d 1041, 1044 (9th Cir. 2018) (“an automatic award of benefits in a disability benefits case is a rare and prophylactic exception to the well-established ordinary remand rule”); Dominguez v. Colvin , 808 F.3d 403, 407 (9th Cir. 2016) (“Unless the district court concludes that further administrative proceedings would serve no useful purpose, it may not remand with a direction to provide benefits”); Treichler v. Commissioner , 775 F.3d 1090, 1101 n.5 (9th Cir. 2014) (remand for further administrative proceedings is the proper remedy “in all but the rarest cases”); Harman v. Apfel , 211 F.3d 1172, 1180-81 (9th Cir.), cert. Denied , 531 U.S. 1038 (2000) (remand for further proceedings rather than for the immediate payment of benefits is appropriate where there are “sufficient unanswered questions in the record”). There remain significant unanswered questions in the present record relating to Plaintiff's residual functional capacity and his ability to perform his past relevant work (or any other work).

RECOMMENDATION

For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered reversing in part the decision of the Administration and remanding the matter for further administrative action consistent with this Report and Recommendation.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No. notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

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Notes:

For claims filed after March 27, 2017 (such as Plaintiff's claim), new regulations govern the evaluation of medical opinion evidence. Under these regulations, ALJs no longer “weigh” medical opinions; rather, ALJs determine which opinion(s) are the most “persuasive” by focusing on a variety of factors: (1) supportability; (2) consistency; (3) relationship with the claimant (including the length of treatment, frequency of examinations, purpose of treatment, extent of treatment, and whether the medical source examined the claimant); (4) the medical source's specialty; and (5) “other” factors. See 20 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). The two most important factors in determining the persuasiveness of medical opinions are supportability and consistency with the evidence. See 20 C.F.R. §§ 404.1520c(a), 416.920c(a). ALJs must explain how they considered the factors of supportability and consistency, but need not explain how they considered any other factor. See 20 C.F.R. §§ 404.1520c(b), 416.920c(b). The new regulations also eliminated the term “treating source, ” as well as the rule previously known as the treating source rule or treating physician rule, which formerly required special deference to treating sources. See 20 C.F.R. §§ 404.1520c, 416.920c; Natalie E. v. Saul , 2020 WL 6545860, at *3 n.4 (C.D. Cal. Nov. 6, 2020); Martha R.L. v. Saul , 2020 WL 1140433, at *3 n.6 (C.D. Cal. Mar. 9, 2020); Alonzo v. Commissioner , 2020 WL 1000024, at *3 (D. Ariz. Mar. 2, 2020); see also 81 Fed. Reg. 62560, at 62573-74 (Sept. 9, 2016). As pertinent to Dr. Pinto's letter, the new regulations also state that adjudicators will not provide any written analysis concerning how they considered statements on an issue reserved for the Commissioner ( i.e. , a statement that would direct the decision of disability, such as a statement that a claimant is unable to work). See 20 C.F.R. §§ 404.1520b, 416.920b.

And yet, the Ninth Circuit sometimes has stated that there exists “no jurisdiction to review the Appeals Council's decision denying [the claimant's] request for review.” See, e.g. , Taylor v. Commissioner , 659 F.3d 1228, 1233 (9th Cir. 2011); but see Smith v. Berryhill , 139 S.Ct. 1765 (2019) (court has jurisdiction to review Appeals Council's dismissal of request for review as untimely); see also Warner v. Astrue , 859 F.Supp.2d 1107, 1115 n.10 (C.D. Cal. 2012) (remarking on the seeming irony of reviewing an ALJ's decision in light of evidence the ALJ never saw).

A March, 2018 lumbar spine MRI reportedly revealed mild to moderate lumbar degenerative disc disease, moderate to severe lower lumbar facet spondylosis most pronounced at ¶ 4-L5 where there was a disc extrusion causing moderate stenosis and moderate to severe bilateral neural foraminal narrowing, and mild bilateral L3-L4/L5-S1 neural foraminal narrowing (A.R. 303-04, 416-18).

In February and May of 2019, Plaintiff received caudal epidural steroid injections, which reportedly gave him limited pain relief (A.R. 494-97, 507, 509-13). He also had a Monovisc injection in his right knee in May of 2019 (A.R. 498-99).

As noted above, Plaintiff had been referred to neurosurgery in November of 2018 for potential weight loss surgery, and had been found to be a candidate for surgery if he could reduce his weight to 300 pounds (A.R. 513).

Of course, Plaintiff's condition may have worsened over time. See A.R. 214, 219, 256-68. The most recent of the state agency physicians' opinions was dated more than a year prior to the end of the period at issue.

On reconsideration, there was mention of an alleged “inability to thrive due to pain, weakness, and inability to ambulate.” See A.R. 84, 214. Plaintiff testified at the hearing that he had been referred to a psychiatrist because he had suicidal ideation due to the pain he experienced (A.R. 60-61). This testimony did not trigger a mental residual functional capacity assessment, however. See A.R. 42. And the Administration did not refer Plaintiff to a consultative examining psychiatrist or psychologist.

The Court need not and does not reach any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be an appropriate remedy at this time. See Lambert v. Saul , 980 F.3d 1266, 1278 (9th Cir. 2020) (when remanding for further administrative proceedings, the Circuit declined to reach the claimant's other assignments of error “as the record may change on remand”).

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